In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Tuesday, 22 May 2012

Homage or Humiliation? Moral Rights, Vertigo, and The Artist

Photo by Martin Dee;smile by Mira

The 1709 Blog is delighted to bring readers the first in a series of guest blog posts by Mira T. Sundara Rajan on moral rights. Mira should require little introduction to anyone who is concerned with this important subject, since this blog reviewed her book, Moral Rights, last year (here). Mira's next book, Moral Rights: A Guide to Global Practice, is in the pipeline. The subject of her first guest post is ...

Homage or Humiliation? Moral Rights, Vertigo, and The Artist

Michel Hazanavicius’ film, “The Artist,” was a sensational 2011 tribute to silent movies - and also, as the director has since argued, to Hitchcock’s classic 1958 film, “Vertigo” (see BBC News, 10 Jan. 2012). The climactic scene of The Artist plays out to the accompaniment of the haunting score from Vertigo, composed by brilliant film composer and long-time Hitchcock collaborator, Bernard Hermann. In a silent film with no accompanying dialogue or environmental sounds to distract, the juxtaposition of new visuals and old music could not be more stark. For those familiar with Hitchock’s original -- called, by some critics, the greatest film of all time (while Hermann’s film score has been called “the greatest score ever written for Hollywood”: see Alex Ross, The New Yorker, Feb. 24, 2012) -- the feeling of déjà vu is intense. Actress Kim Novak, who played dual roles as Hitchcock’s mysterious heroine in Vertigo, called it a “rape”: “I feel as if my body - or at least my body of work - has been violated by the movie” (BBC News, 10 Jan. 2012).

As a lawyer interested in the moral rights of authors and artists, I couldn’t agree more. The situation surrounding the music for The Artist is a perfect, practical illustration of just how a moral rights violation can occur. Moral rights are based on the twin principles of attribution, which means adequate acknowledgement of the authorship of a work, and integrity, the notion of maintaining the quality of a work intact. The moral right of integrity is particularly relevant where the treatment of the work might cause damage to the author’s reputation.

In the case of Vertigo and The Artist, a highly original work was removed from its creative context and placed into an entirely new one. The use of the original music raises questions of both attribution and integrity. In the film titles, The Artist make no mention of Hermann at all, but only credits Ludovic Bource as the author of the film’s original score -- Hermann’s name appears deep within the end credits (see Alex Ross, above). While the scene is playing, there is no indication that the film has moved from original music to the Vertigo score. The music that is played is taken from Vertigo with no alterations. It is the music from Vertigo’s crucial love scene, in which the doomed heroine re-appears as if resurrected from the dead. And, although the images from Vertigo are not featured, anyone who is familiar with the original film will be reminded of them. Can moral rights in a film be infringed by an evocative allusion through the use of its music, even though the images per se have not been “copied”?

The integrity question, of course, is still broader. Does the removal of film music from its original context amount to a violation of integrity? Is the fact that the music was played without any alteration support the argument that its integrity was maintained by the makers of The Artist, or does it, in fact, violate integrity to replicate exactly the same music in a new context -- akin to copyright infringement in the usual sense? And what about the integrity of the musical score in the new film? Could Ludovic Bource have sued the film’s director for overriding his choices, and substituting the segment from Vertigo for Bource’s own, original composition?

The nature of film-making brings an added level of complexity to these questions. Film is a composite work based on the contributions of many individuals -- producer, director, author of the screenplay, author of the original musical score -- and, of course, the actors who deliver original performances. Worldwide, there is little agreement on who should be considered the “author” of a film. Many jurisdictions, including France, recognize co-authorship, with both director and author of the musical score acknowledged as joint authors of the film. In the case of the film composer, he or she may be simultaneously entitled to two authorial copyrights -- one for the original score, and one in the film as a whole. At WIPO, a new treaty on copyright in “audiovisual performances” is currently pending; if this is adopted, it appears very likely that the moral rights of actors to the attribution and integrity of their performances in films will be explicitly entitled to protection, as authors’ moral rights are now protected under the Berne Convention.

In the case of Vertigo, whose moral rights have been violated? Bernard Hermann’s, as the composer of the musical score? Alfred Hitchock’s, as the director who was responsible for the combined effect of music plus images, and gave the music its narrative significance? The actors -- Kim Novak and Jimmy Stewart -- who played their parts against the background of the music, and infused it with emotional intensity and poignancy?

Finally, the central role played by technology in this dilemma can hardly be overstated. Who says that moral rights have lost their relevance in a technological age? On the contrary, we live in the age of sampling, re-using, and remixing. The juxtaposition of Vertigo and The Artist is only made possible by the technology that remasters and integrates the original musical score into the new production. Moral rights are not only relevant to technology; they represent some of the key cultural issues of our time.

Those familiar with economic copyright might instinctively feel that what happened in The Artist is a form of free-riding on the labours of another. From a moral rights perspective, it amounts to emotional blackmail. As Kim Novak points out, the makers of The Artist are "using [the] emotions [that Vertigo] ... engenders as if it [they] were their own." Ironically, “The Artist” hails from France -- a country that arguably has the longest-standing and most powerful tradition of protection for moral rights in the world. In view of this cultural and legal tradition, the directorial choices in “The Artist” are even more difficult to understand.

11 comments:

I really do admit that when I saw the Artist I was deeply shocked to hear one of my favourite pieces of film music. I actually thought: you can't do that! (but I am also equally shocked to hear Wagner in the film The Gladiator and no mention of him in the wikipedia page but yes, Wagner's been dead for a long time so it doesn't matter if his music is stolen...?!)

From the paragraph below, it seems extraordinary that in France, or all places, the author of the original screenplay is not recognised as a co-author of a film.

"Many jurisdictions, including France, recognize co-authorship, with both director and author of the musical score acknowledged as joint authors of the film. In the case of the film composer, he or she may be simultaneously entitled to two authorial copyrights -- one for the original score, and one in the film as a whole."

What of the greater public good, and the basic human right of the creator of the new film to express themselves freely? Is there really a case for saying Hazanavicius can't produce the best film possible, that the public should be deprived of a chance to see his work the way he wanted it to be, or that it's wrong to introduce the work of Wagner to a new generation who might never hear his work at all? Surely the basic human right of free expression, and the value to society of a wider public hearing great scores outweighs the individual rights of Hermann and Wagner, both of whom are credited, and perhaps more importantly, far too dead to express any personal opinion about this being something they object to or approve of?

The post doesn't make clear what is the position under 'economic' copyright. The film Vertigo itself may be out of copyright by now (?) but if Bernard Herrmann died in 1975 there is presumably still a composer's copyright vested in his estate. As the use of his score in The Artist is credited, however inadequately, I guess that someone somewhere approved the use and/or received a royalty. If Hermann's estate did approve the use, that to some extent resolves the question of moral rights. The makers of The Artist could not ask Hermann himself, so they would be entitled to rely on the decision of his estate. I certainly don't think that Kim Novak has any right to feel aggrieved (though of course she is entitled to express a view), since she had nothing to do with the score of Vertigo and almost certainly hadn't heard it when she gave her performance.

As for the point raised by Andrew Robinson of the 'basic human right' to express oneself by using someone else's work, I avail myself of the Aussie expression 'Don't come the raw prawn'.

from wikipedia: "In June 2006, agents representing the estate of composer Gustav Holst (1874–1934) filed a lawsuit claiming that Zimmer plagiarized material from The Planets. Specifically, "The Battle" was believed to plagiarize Holst's "Mars, the bringer of war".[5] The Track "Barbarian Horde" reprises most of these themes.

Film music critics noted that the score also borrows from works by Richard Wagner, particularly themes from Siegfried and Götterdämmerung, included in the latter half of "The Might of Rome" and "Am I Not Merciful?"

hm... seems that indeed when people are too dead it's all right then...I still don't find it great that someone's getting money from the work of others and I find it difficult to call monsieur Zimmer a composer...

Strange post. I find certain aspects of Ms. Rajan's argument difficult to fathom. Since Ms. Novak did not compose the score, I don't see how her moral integrity is violated. If I'm not mistaken, the music was added to Vertigo after filming, so Ms. Novak's performance wasn't even "inspired" by the music. She may not like it, but that is not the same as violating her artistic integrity.

In addition, the argument that some how or other Mr. Hermann should be prominently displayed in the opening credits, prominently displayed when the insertion occurs in the film (which strikes me as, well, ludicrous), and that some how or other the arranger/composer of the general score was morally compromised because Mr. Hermann's music was inserted (after all, perhaps Mr. Bource suggested it or agreed to it, this is not discussed). And, after all, I assume that compulsory license applies to the use of the music and that under US law (which would prevail in this instance) there is little or no limitation on how the compulsory licensed material is used (I think that is correct). And Ms. Rajan rather broadly (and as far as I can tell with no evidence) implies that the music used in The Artist is the recording from the original film which would require permission of the producers -- again under US law -- I say this because she aludes to reproduction and sampling in one paragraph as though the music was lifted from Vertigo instead of being performed by musicians specifically for The Artist (talk about moral integrity, imputing the work of one group to another is a form of violating moral integrity...I hope the musicians post letters to The New York Times accusing Ms. Rajan of "rape").

Anyway, it is fuzzy logic like this that actually confuses people about moral rights and moral integrity. I don't think Ms. Rajan has done any service to anyone in defining the concepts or showing how The Artist violates them. So, in the end, it really looks more like the author is making a poor argument based on her own prejudices; or if they are based on legal principles, she has done a very poor job of showing what principles apply and how.

Language Librarian Oxford's second post leaves me wondering if the orchestral film score genre is running out of places to go. Mainstream cinema audiences are not (on the whole) scholars of classical music, so it's going to be very hard to write a score that resonates with them without resorting to clichés. With the movie industry putting out about 1000 feature films each year, is it reasonable to expect that none of the music therein closely resembles any of the 28 million songs currently available in the iTunes store?

This sort of thing is going to be an increasingly large issue for copyright law. In 1709, less than 4000 books were published. In 2011, the world commits over 3 exabytes (that's 3,000,000,000,000,000,000 bytes) of data to storage every day. Is it really reasonable to assume we can keep scaling up like this without easing off on copyright?

Surely Andrew Robinson the possibility that there may be similar music in movies and those on iTunes is not a reason to discredit the place of copyright. If this in fact is happening then surely those artists whose copyright has been infringed should have the ability to seek recourse? You cannot be suggesting that "if everyone is doing it then It's ok"...

I entirely agree with Stewart Smith's comments and I had been planning to write something similar myself last night. The reason I didn't was the, to my mind, confused issue of jurisdiction. Mr Smith says that the law on moral rights which should apply are those of the US, but I'm not so sure. Certainly the filming was done in the US, but the director, principal editor and composer of the main score are all French and the movie is generally billed as a French movie, so where was it edited? If it was edited in France, then surely that was where it was 'made' (ie all the components that made up the finished movie were assembled there) and so French droit moral would surely apply. And as Ms Rajan tells us, the French law takes these moral rights very much more seriously than the US law - indeed with the exception of the 1990 Visual Artists Rights Act, US law is somewhat thin on this subject. A couple of authorities I have consulted mention that it is normal in the movie world for waivers of artists' moral rights to be included in contracts - something that French law does not permit (see Guille v. Colmant, Recueil Dalloz-Sirey [D.S. Jur.] 284, Gasette du Palais [Gaz. Pal.] 1.17 (cour d'appel, Paris 1967)).

In reply to M, I wasn't suggesting that this is a case of 'if everyone's doing it then it's ok', I was actually observing that we're heading towards 'nobody can do it anymore because it's all been done'. If a creative area has been 'mined out' then copyright actually discourages the creation of new works, and prevents new artists ever getting a foothold, which doesn't "...promote the progress of science and useful arts..." as the US constitution puts it.

I would not like to comment on a film, The Artist, that I have not seen. However speaking as a practising visual artist, I feel that there is some misunderstanding about the nature of originality. As Douglas Hofstadter has rightly observed, all originality is variations upon a theme. For instance, in my local shop the old fashioned, standard milk is now called original milk. Originality derives from copying or reproduction in a way that is not error-proof.

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